clr/1986/1986_3_549.pdf

(1986)light of the evidence by Mr. Papadopoulos the conclusion is .that he was not 'in a position to express an opinion as to the .abilities of applicants .and .that his decision not .to recommend them for promotion misdirected the respon­ dents in reaching .their .decision :not to .promote the appli- "5 cants.

(2)It follows that the .respondents laboured under a misconception of fact, namely that they were not worthy •to be recommended by the appropriate Department, despite the fact that they were superior ;in ;qualifications and senior 10 to :a number of the .interested parties. Sub judicedecision annulled. Costsagainst respondents. Cases referred ,to: 'Theodossiou v. The Republic, 2 R.S.C.C 44: 15 Georghiouv. The Republic

(1983)3 C.L.R.

1. Recourses. Recourses .against .the decision of the respondents to promote the interested parties to the post of Inspector Β Elementary Education m preference and instead of the .applicants. 20 A. S. Angetides, for applicant in Case No. 505/
2. A. Triantafyllides. for applicant in Case No. 545/
3. M. Florentzos, .Senior Counsel of •the respondents. the Republic, for 25 Cur. adv. vult. DEMETRIADES J. read the following judgment. By these two recourses the applicants challenge the decision of the respondents by which the interested parties Andreas Polydorou, Lefkios Papanicolaou, Christos Christodoulides and Klitos Soteriades were promoted to the post of Inspector B' Elementary Education as from the 16th September, 1983, instead of them. 550 30 3<C.L.R. Demosthenous and Another v. Republic Demetrisdes J. The applicants and all intercsred parres were, at the material time. Elementary School teachers holding the post of E'ementnry Education Headmaster A ' . 5 10 As there were four vacancies in the post of Inspector B' Elementary Education, the Director-General of the Ministry of Education, by letter dated the 14th March.
4. rcqu ested the respondents to proceed with the filling of the said posts. The respondents are by the Public Educational Scrvic: Law. 1969 (Law 10/69). as later amended, entrusted witithe appointmerit, promotion and transfer of educationalists. The-pnsr of Inspector Β' Elementary Education is a first entry and promotion post. 15 20 25 30 35 The applicants base their application on a number of legal grounds but their main cause-of complaint is that the respondents m choosing the interested parties were actin.n under a misconception of fact in that the recommendation^ for their promotion, which were made- to them, were given by a person or persons who had never come in contact with the applicants and who knew nothing of their abilities and merit. Counsel for the respondents subnvttcd that the respon­ dents in reaching their decision arc by Lnw 10''
5. r^ amended by the Public Educational Service ('Amendment Lnw. 1079 (Law 53/79). bound to take into consideration the "service reports" and the recommendations of the ap­ propriate Department of Education and that in the lighi of the case-law of this Court the respondents could not easily circumvent nor upset the recommendations that wore oiven by such" Department. Tn support of his argument he relied on a mimher'of precedents of the Supreme Constitu­ tional Court of the Republic and the p-esent Supreme Court. Tn particular, he relied on certain passages from the fol­ lowing cases: Theodossiou v. The Republic. 2 R.S.C C.
6. in which, at p.
7. it was decided: "In the opinion of the Court the recommendation of a Head of Department or other seninr responsible of­ ficer. and especially so in cases where specialized 551 Demetriades J. Demosthenous and Another v. Republic {1986} knowledge and ability are required for the performance of certain duties, is a most vital consideration which should weigh with the Public Service Commission in coming to a decision in a particular case and such re.commendation should not be lightly disregarded." 5 Georghiou v. The Republic,

(1983)3 C.L.R. 17, where (at pp. 3 2 - 3 3 ) the following are stated: "These four teachers, however, had the add'tional advantage over the applicant in that they had been recommended for promotion, whereas the applicant ha't 10 not been recommended. Irrespective, however, of any recommendations, once there was not any superiority of the applicant over them, it was reasonably open to the Commission to prefer any one of them instead of the applicant. Therefore, the recourse against them fails. 15 Though applicant has shown a sl:ght superiority as to the marks over such interested parties, a difference of one or two marks in one report, is not such as to amount to a striking superiority of the app'icant (the 20 onus of which was upon him) over such interested parties, as to lead to the annulment of the sub judice decision (vide Evangelou v. The Republic (supra) and Panayidou v. The Republic (supra)). Before concluding as to whether all ether factors are more or less equal, I have to consider the recommendations of the Department as they appear in exhibit 2, as well as the results of the interviews, since these form part of the overall picture of the part:es 30 concerned and they go to the merits of the parties. If in this respect the interested parties are superior to the applicant, then the question of his seniority does not arise. Certain of such interested parties were recommended for promotion and their names were in- 35 eluded in the list of the persons so recommended . , .. In any case, the recommendation 552 3 C.L.R ^ 10 15 20 25 30 35 Demosthenous and Another v. Republic Demetriades J. is a subjective criterion and one cannot say that applicant should have been recommended or not Therefore, special reasons should have been given by respondent why it chose to promote 16 interested parties who were not recommended for promotion as against the 49 who were specially recommended for promotion out of the 74 in exhibit 2, and who were not promoted. On account of this, I would say that with regard to those of the interested parties who were recommended for promotion, that is interested parties 14, 15,

1. 22, 23, 27, 28, 29, 33, 34, 36, 37, 38, 39, 40 and 41 this factor goes to their credit and, therefore, all factors are not equal so as to let the seniority of the applicant prevail even though in some cases such seniority is four years. (Antoniou v. The Republic (supra)). With regard however, to interested parties
2. 16, 17, 24, 25, 26,
3. 31, 32 and 35, they were not amongst those recommended for promotion. Therefore, such factor does not operate in their favour and a comparison of those parties with the applicant shows that all factors are more or less equal. That being so, cogent reasons should have been given why applicant's seniority was disregarded. This is addition to what I have already said, that cogent reasons should have been given why such parties were preferred to others recommended for promotion. (See, loannides v. The Republic (supra)). This goes to the reasoning of the decision and makes it void for lack of due reasoning." At the material time the appropriate Department was headed by rotation, that is for fifteen days each, by Mr. Papadopoulos and Mr. G. Papaleontiou, who held the post of General Inspector Elementary Education. This arrangement was made by the Director-General of the Ministry of Education as the post of Head of Department of Elementary Education had not been filled after the retirement of Mr. Papaxenophontos in July
4. After all candidates, including the two applicants, were interviewed by the respondents in the presence of Mr. Papa40 dopoulos and Mr. Papaleontiou, the two applicants were 553 Demetriades J. Demosthenous and Another v. Republic

(1986)disqualified by the respondents for promotion on the ground that they had not been recommended by the appropriate Department. To this effect see the relevant minutes of the respondents which are Appendices "ΣΤ" attached to the Oppositions in both cases. With regard to applicant in Case No. 505/83, the res­ pondents found that despite his superiority in qualifications over two of those selected and his seniority over three, he was not selected because he was not recommended by the approriate Department and his performance during the interview was rated as "average". 5 10 The same reasons were given by the respondents in not selecting the applicant in Case No. 545/83, with the ex­ ception that his performance during the interview was rated as "good". From the contents of the said minutes of the respondents it is clear that one of the factors that made them decide against their promotion, although they were superior in qualifications over two and senior to three of the interested parties, was their non-recommendation by the appropr'ale Department. 15 20 Tn support of his submissions on this issue counsel for the respondents filed an affidavit sworn by Mr. A. Papad'ipoulos in which he states the following: «

1. Είμαι ο Διευθυντής Δημοτικής Εκπαίδευσης έχω προσωπική γνώση των γεγονότων αυτή;: της υπόθεση" και έχω εξουσία να προβώ στην παρούσα 'Ενορκη Δή­ λωση. -5
2. Μέχρι τις 14 Μαΐου.
3. κατείχα τη θέση του Γενικού Επιθεωρητή Δημοτικής Εκπαίδευσης. Με τον 30 κύριο Γ. Παπαλεοντίου. επίσης τότε Γενικό Επιθεωρη­ τή Δημοτικής Εκπαίδευσης, δώααμε τις συστάσεις του Τμήματος μας γ;α τους υποψήφιους για προαγωγή. στην Επιτροπή Εκπαιδευτικής Υπηρεσίας, όπως φαίνε­ ται στο πρακτικό της Επιτροπής με ημερ. 15.9.1983 35 (Παράρτημα ΣΤ' στην Ένσταση).
4. Δώσαμε τις συστάσεις με βάση τ ς προσωπικές μας γνώσεις, τις συστάσεις και απόψεις των οικείων 554 3 C.L.R. Demosthenous and Another v. Republic Επιθεωρητών, τις. υπηρεσιακές εκθέσεις στοιχεία των σχετικών φακέλλων.» 5 10 15 20 Demetriades J. και όλα τα ("
5. I am the Director of Elementary Education, Τ have personal knowledge of the facts of this case and I am authorised to swear this affidavit.
6. Till the 14th May, 1984, I held the post of Ge­ neral Inspector Elementary Education. Together with Mr. G. Papaleontiou who was then also a General Inspector of Elementary Education, we gave the recommendations of our Department for the candidates for promotion, to the Educational Service Commission, as it appears in the minutes of the Commission dated 15.9.1983 (Appendix ' Σ Γ to the Opposition).

(3)We gave the recommendations on the basis of our personal knowledge, the recommendations and views of the appropriate Inspectors, the service reports and all material in the relevant files.") After this affidavit was filed, counsel for the applicants asked that Mr. Papadopoulos be made available for crossexamination. Mr. Papaleontiou was not asked by any of the parties to give evidence, either by affidavit or orally. As Mr. Papadopoulos' evidence in cross-examination a lengthy one, I shall refer only to the gist of it, which can be summarised as follows: 25 30 35 is

1. At the material time, i.e. immediately before he was due to appear before the respondents or when the relevant posts were advertised, no formal meeting for the exchange of views, between himself and Mr. Papaleontiou on the one part and the Inspectors supervising the work of Elementary School Teachers of the other part, regarding the qualities of the candidates for the post concerned, was ever held.
2. As far as he was concerned, he had exchanged views about the ability of the candidates long before the post were advertised, at a time that it was not foreseeable when the posts were to be filled. He further said that at the time the scheme of service of the post had not been decided, nor was it known how many posts were to be filled. 555 Demetriades J. Demosthenous and Another v. Republic